Economic and Social Justice Perspectives
Edited by Anne Flanagan and Maria Lillà Montagnani
Chapter 5: Ex post Liability Rules: A Solution for the Biomedical Anti-commons?
* Rosa Castro Bernieri INTRODUCTION 1. While patents are mainly justified in the law and economics literature as temporary exclusive rights that foster innovation incentives, the guiding principle of efficiency requires that exclusive rights over technological and scientific knowledge do not preclude their further advancement. Thus, efficiency suggests that patent rights should not extend beyond social optimalization in a similar way to social justice calls for limitations on the exclusive nature of rights, in order to avoid patents encroaching upon other public interest goals such as access to knowledge.1 In the biomedical arena, patents are considered as a vital source for innovation incentives, while undue limitations on access are perceived as a growing concern. In particular, the increasing number of patents issued for biomedical research tools has been singled out as a potential catalyst for the emergence of anti-commons.2 Most proposals to deal with the emergence of anti-commons in * An earlier version of this chapter was presented as a paper at the 3rd Annual Workshop on the Law and Economics of Intellectual Property and Information Technology, Centre for Commercial Law Studies, Queen Mary, University of London. I thank discussants and participants in the Workshop for their useful comments. My special thanks to Maria Lillà Montagnani for her comments on the earlier draft. All errors remain my own. 1 Giovanni B. Ramello, ‘Intellectual property, social justice and economic efficiency: insights from law and economics’ (2007) in this book, Chapter 1. 2 In the tragedy of anti-commons, a resource is prone to underuse...
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